5.3 Professional Liability and Your Nursing License

As discussed in the previous sections, professional liability occurs when a civil lawsuit compensates patients who allege they have suffered injury or damage as a result of professional negligence. Many nurses elect to purchase malpractice insurance to protect themselves from professional liability, especially if working in specialty areas that experience a high number of claims, such as in obstetrics or post-anesthesia care units (PACUs). The Nursing Service Organization (NSO) works in association with the American Nurses Association to provide malpractice insurance for nurses interested in purchasing it.

The civil justice system cannot make rulings regarding your nursing license. It is the responsibility of the State Board of Nursing to suspend or revoke an individual’s nursing license based on a disciplinary process.

The State Board of Nursing (SBON) governs nursing practice according to that state’s Nurse Practice Act. The purpose of the SBON is to protect the public through licensure, education, legislation, and discipline. A nursing license is a contract between the state and licensee in which the licensee agrees to provide nursing care according to that state’s Nurse Practice Act. Deviation from the Nurse Practice Act is a breach of contract that can lead to limited or revoked licensure. The SBON can suspend or revoke an individual’s nursing license to protect the public from unsafe nursing practice. Nursing scope of practice and standards of nursing care are defined in the Nurse Practice Act that is enacted by the state legislature and enforced by the SBON. Nurses must practice according to the Nurse Practice Act of the state in which they are providing client care.

A nurse may be named in a board licensing complaint, also called an allegation. Allegations can be directly related to a nurse’s clinical responsibilities, or they can be nonclinical (such as substance abuse, unprofessional behavior, or billing fraud). A complaint can be filed against a nurse by anyone, such as a patient, a patient’s family member, a colleague, or an employer. It can be filed anonymously. After a complaint is filed, the SBON follows a disciplinary process that includes investigation, proceedings, board actions, and enforcement. The process can take months or years to resolve, and it can be costly to hire legal representation.^[1]

During the investigation process, investigators use various methods to determine the facts, such as interviewing parties who were present, reviewing documentation and records, performing drug screens (if impairment is alleged), and compiling pertinent facts related to the events and circumstances surrounding the complaint. Nurses being investigated may receive a letter, email, or phone call from the SBON, or they may be required to appear at a certain date and time for an interview with an investigator. It is recommended that nurses consult with an attorney before responding to the SBON within the deadline provided. Nurses should be cooperative but should be aware that whatever is shared will be provided to a prosecuting attorney and/or the SBON.^[2]

After completion of the investigation, the prosecuting attorney will determine how to proceed. A conference may be scheduled where the nurse will be interviewed by a member of the SBON and possibly the prosecuting attorney. It is recommended for the nurse to have an attorney present during proceedings. The nurse has the opportunity to present evidence supporting their case. A resolution may be offered after the conference that ends the matter.^[3]

However, if the SBON believes there is significant evidence, a formal hearing is held where a disciplinary action is proposed. This formal hearing is similar to a civil trial. The hearing panel may include some or all of the SBON members. A court reporter records the entire proceeding and a transcript is created. Witnesses may be called to testify and the nurse undergoes cross-examination. When both sides have presented their cases, the hearing is concluded. The outcome of the formal hearing is a ruling by the administrative law judge and the SBON. The nurse may face disciplinary action such as a reprimand, limitation, suspension, or revocation of their license. Nondisciplinary actions, such as a warning or a remedial education order, may be set. See a description of possible disciplinary actions enforced by the Wisconsin State Board of Nursing in Table 5.3.

Table 5.3 Potential Disciplinary and Nondisciplinary Actions of the Wisconsin State Board of Nursing^[4]